D7.4: Implications of profiling practices on democracy

Title: THE EFFECT OF PROFILING ON THE RULE OF LAW

The effect of profiling on the rule of law

After an assessment of the relationship between profiling and the three legal principles we have focused on, the question that remains is: how does this affect democracy or the rule of law? I am not sure that we really need to ask such a Big Question, because my gut feeling tells me that the rule of law, let alone democracy, is not affected by profiling. Nevertheless, since the question is put on the table anyway, we might as well give it a try.  

Hildebrandt, Gutwirth & De Hert make an admirable case for the rule of law as being dependent on a good mix of tools of opacity and tools of transparency. They have also good – if not definitive – arguments for judging privacy, data protection, and perhaps ipse-identity to be relevant, if not indispensable, tools in this respect. What needs to be done after a thorough analysis of the impact of profiling on privacy, data protection (or decency) and ipse-identity – which the previous texts and my above thoughts only begin to do – is to assess the resulting impact on the rule of law. It cannot be as simple as adding two and two together, however. If privacy, decency, or ipse-identity are being affected by profiling, perhaps even seriously, that does not in itself mean that the rule of law is affected at the same time or to the same degree.

Not only should we look at alternative tools of opacity and tools of transparency that may perhaps be equally effective in salvaging the rule of law where privacy or ipse-identity fail, but more importantly, we should take into account more of the societal context and counter-developments that occur at the same time. For example, it is conceivable that as society is changing – not only through technology, but also through internationalisation, commodification, anti-terrorismification, and trivialisation – our notion of democracy or the rule of law is shifting as well. They are not fixed notions, and even within the continuing framework of a democratic constitutional state, the conception of what exactly constitutes democracy or fairness may vary.